Making a DIY will | What are the risks?

A ruling on a ‘DIY will’ case at the High Court last year, has now been formally admitted to probate, allowing a daughter to inherit her father's estate, excluding her 3 siblings. This case concerned a dispute regarding the validity of a new ‘DIY will’ which emerged shortly after the father’s death, contradicting a previous will. This recently reported case has highlighted the risks and uncertainty that can occur as a result of DIY wills.

Inheritance disputes

In 2019 there were a record number of inheritance disputes at the High Court, with figures reported by the Ministry of Justice in 2020 showing a total of 188 cases brought by individuals in 2019 who claimed they were entitled to a share of, or a larger portion of, an estate – up from 128 in 2018, 145 in 2017 and the previous record 158 in 2016.

FURTHER READING

Why has there been an increase in inheritance disputes?

There are a number of reasons for this rise, and recent high-profile cases have raised more awareness of inheritance disputes, such as Ilott V Mitson which received widespread press coverage and has led to a substantial change in the law. Reasons include a surge in the number of unmarried couples; who lack automatic legal inheritance rights and house price growth over recent years that has increased the value of estates and made people more interested in challenging wills. Increasingly fragmented families, with more half-siblings and stepchildren, have also led to an increase in the number of claims on estates, when families and spouses disagree over who should inherit what. The increase can also be partly attributed to more people choosing to make their own wills, or using DIY online will writing services, rather than seeking appropriate advice from a solicitor to draw up a will for them.

What are the risks of a DIY will?

The recent case of a daughter who was to inherit the entire estate of her late father, until her three siblings produced a second ‘DIY will’ scribbled on notepaper, highlights issues around the validity of ‘DIY wills’. In this case the judge ruled that there was 'no evidence' the late father had signed, dictated or demanded a new will before he died three years ago and also no information regarding who was present when that occurred and what the father’s state of mind was at the time. The judge discounted the new ‘DIY will’ and ruled in favour of the original 2018 will, allowing the daughter to inherit the entire estate. Cases like this can fracture a family and cause a lot of heartache. The other siblings in the case maintain that they had cared for their father and tended his daily needs during his last months, and that their dad had been determined to change his will before he died. However, without proof of this, the judge must rule in favour of the evidence presented and follow rules to ensure a will is valid.

What are the common mistakes when making a DIY will?

A will that isn’t signed or witnessed correctly; by an incorrect number of witnesses or has been witnessed by the wrong people.
Appointing an inappropriate executor.
Referring in the will to ‘children’ where in law, ‘stepchildren’ are not ‘children’ and would therefore not be included.
Not correctly specifying items in a will or to whom they are to be left.
Failing to leave a residuary gift because of the wording used, therefore a partial intestacy results and the estate passes in a way he/she would not have intended.
Claims that the will was made when the testator was lacking 'testamentary' capacity or was suffering duress at the hands of beneficiaries.
Not fully understanding the Inheritance Tax consequences of what you are doing, leading to some people receiving more or less than you wanted them to.
Not actually revoking previous wills leading to two wills being admissible to Probate.
Not understanding the full consequences of the gifts you are making and how they could have been handled by a professional to minimise risks to you and your family.

Why should I use a regulated solicitor to make a will?

With access to so much information online, many people now consider making their own ‘DIY will’, either as a result of feeling they have access to the information required to do so from home without having to visit a solicitor or to save money. It is understandable that some people may view the cost of making a will with a solicitor as an unnecessary expense Estate Planning when other financial matters are more pressing or that there is no direct or immediate benefit to doing so. However, using a solicitor could save a lot of expense and heartache further down the line. By using a solicitor to help draft your will, you have the benefit of their expertise, knowledge and forethought to help minimise the possibility of disputes arising in the future. Solicitors can ensure your will is valid, ensure language used within the will results in your estate being distributed according to your wishes and will be accepted by a court should the need arise. Solicitors can also register your will to make sure it can be easily found as a reliable will. Unregulated will writers also exist and often claim to be professionals, but they are not normally subject to the same level of regulation as solicitors and this regulation is what helps you as a consumer to be protected. As solicitors, we must be fully qualified to carry out your work and we also need to be insured (to a minimum amount of £2,000,000) so that a client has recourse against us if we should make a mistake. We also have the Legal Ombudsman on hand to deal with complaints against us if we fail to act in accordance with our duties.

How much does it cost to make a will with a solicitor and can I do it from home?

Our standard charge for a single straightforward will is £250+VAT. If wills are required for a married couple or civil partners then our standard charge is £400+VAT (i.e. where wills are almost identical). Our online wills enable our solicitors to create a straightforward will for you without you leaving the comfort of your own home. Unlike other online wills, our price includes a one-to-one consultation with a solicitor to ensure peace of mind that your will suits your needs for now and the future. This can be done by telephone, email or video call. The charge is all-inclusive to enable your final will to be produced in a way to suit you. It is also much easier than many people think. We will ask you for details of your assets and your family situation and what you would like to achieve through your wills. We can then make suggestions and point out any advantages or disadvantages in respect of your proposed course of action to ensure that you are happy with what you are doing.

If you are thinking about making or updating your will, please contact Martin Banwell at Hegarty Solicitors on 01733 295 646 or email martin.banwell@hegarty.co.uk.

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